Harding v. Paramount Pictures et al

Filing 33

OPINION AND ORDER: Accordingly, plaintiff's motion for pro bono counsel is denied and the Clerk of the Court s directed to mark Docket Item 10 as "closed." (Signed by Magistrate Judge Henry B. Pitman on 1/17/2013) (cd)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------X
BENNIE HARDING,
Plaintiff,

12 Ci v. 66 ( DAB) (HB P)
OPINION
AND ORDER

-againstPARAMOUNT PICTURES and
VIACOM INC.,
Defendants.

-------------------- --------------X
PITMAN, United States Magistrate Judge:

By a motion dated March 3, 2012, plainti
££Q bono counsell

(Docket Item 10).

moves for

For the reasons set forth

below, the motion is denied.
The factors to be considered in ruling on a motion
pro bono counsel are well settled and include "the merits of
plaintiff's case, the plaintiff's ability to pay for private
counsel,

[plaintiff's] efforts to obtain a lawyer, the availabil

lIn a civil case, such as this, the Court cannot actually
"appoint" counsel for a litigant. Rather, in appropriate cases,
the Court submits the case to a panel of volunteer attorneys.
The members of the panel consider the case, and each dec
s
whether he or she will volunteer to represent the plaintiff.
If
no panel member agrees to represent the plaintiff, there is
nothing more the Court can do.
See generally Mallard v. United
States District Court, 490 U.S. 296 (1989).
Thus, even in cases
where the Court finds it is appropriate to request volunteer
counsel, there is no guarantee that counsel will actually
volunteer to represent plaintiff.

ity of counsel, and the plaintiff's ability to gather the facts
and deal with the issues if unassisted by counsel."
Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989).

Cooper v. A.

Of these, "[t]he

factor which command[s] the most attention [is] the merits."
.; accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203
(S.D.N.Y. Apr. 26, 1996)

(Batts, J.); see Berry v. Kerik, 366

F.3d 85, 88 (2d Cir. 2003).

As noted by the Court of Appeals:

Courts do not perform a useful service if they appoint
a volunteer lawyer to a case which a private lawyer
would not take if it were brought to his or her atten­
tion. Nor do courts perform a socially justified
function when they request the services of a volunteer
lawyer for a meritless case that no lawyer would take
were the plaintiff not indigent.
Cooper v. A. Sargenti Co., supra, 877 F.2d at 174;

also

~

Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997)

("'In

deciding whether to appoint counsel . . . the district judge
should first determine whether the indigent's position seems
likely to be of substance. ''').
The Court of Appeals for the Second Circu

has

stated in various ways the applicable standard for
assessing the merits of a pro se litigant's claim.
In
Hodge [v. Police Officers, 802 F.2d 58 (2d Cir. 1986)],
[the court] noted that "[e]ven where the claim is not
frivolous, counsel is often unwarranted where the
indigent's chances of success are extremely slim," and
advised that a district judge should determine whether
the pro se litigant's "position seems likely to be of
substance," or showed "some chance of success." Hodge,
802 F.2d at 60-61 (internal quotation marks and cita­
tion omitted).
In Cooper v. A. Sargenti Co., [the
2

court] reiterated the importance of requiring indigent
litigants seeking appointed counsel "to first pass the
test of likely merit." 877 F.2d 170, 173 (2d Cir.
1989) (per curiam) .
Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 204
(2d Cir. 2003).
By a Report and Recommendation dated January 16, 2013,
I recommended that summary judgment be granted dismissing the
complaint.

As explained in the Report and Recommendation,

plaintiff alleges that he appeared in a motion picture entitled
The Warriors, produced in 1978, and that his likeness was subse­
quently used without his permission in an animated video game
that was based on the motion picture.

For the reasons set forth

in the Report and Recommendation, plaintiff's claim is fatally
flawed in several respects.
of res judiciata.

rst, it is barred by the doctrine

Second, I have compared the image of plaintiff

as it appears in the motion picture with the image in the video
game that plaintiff claims is his likeness and concluded that no
reasonable person could conclude that the two images depict the
same individual.

Plaintiff's face is substant

lly different

from the animated character in the video game.
Because plaintiff's claim lacks merit, no useful
purpose would be served by adding plaintiff's case to the list of
cases considered by the Court's Pro Bono Panel.

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Accordingly,

plaintiff's motion for pro bono counsel is denied and the Clerk
of the Court s directed to mark Docket Item 10 as "closed."
Dated:

New York, New York
January 17, 2013

SO ORDERED

United States Magistrate Judge
Copies transmitted to:
Mr. Bennie Harding
272 Central St.
Rockland, Massachusetts

02370

Peter Ostrovski, Esq.
Sean-Francis Kane, Esq.
Pillsbury Winthrop Shaw Pittman LLP
1540 Broadway
New York, New York 10036

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